Milcent v. City of Boston

United States District Court, D. Massachusetts

April 26, 2017

MARIA MILCENT, Personal Representative of the Estate of Shongi Fernandes, Plaintiff,v.CITY OF BOSTON, and SERGEANT DAVID GAVIN, Individually, and in his official capacity as an Employee, Agent, and/or Officer of the BOSTON POLICE DEPARTMENT, Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

George
A. O'Toole, Jr. United States District Judge.

The
magistrate judge to whom this matter was referred filed a
report and recommendation (dkt. no. 107)
(“R&R”) with respect to the plaintiff's
motion to amend the complaint (dkt. no. 92) to add two new
claims.[1] The magistrate judge recommends granting
the motion. Defendant Sergeant David Gavin has filed an
objection to the R&R (dkt. no. 110). Assuming the
recommendation needs this Court's review as an R&R,
and having considered the relevant submissions, I agree with
the magistrate judge's analysis and conclusions. I
therefore overrule the defendant's objection and approve
and ADOPT the magistrate judge's recommendation in its
entirety. Accordingly, the Plaintiff's Motion for Leave
to Amend Complaint is GRANTED.

The
Clerk will schedule a status conference at which the parties
should be prepared to discuss the trial of this case.

It is
SO ORDERED.

I.
Background

This is
a civil rights case alleging that certain Boston Police
Department (BPD) officers assaulted a passenger in a car
during a stop of the vehicle. The alleged victim, Shongi
Fernandes, passed away after filing suit and Maria Milcent
was substituted as plaintiff as the representative of his
estate. The plaintiff had disclosed early in the proceedings
that she planned to move to amend the complaint after fact
discovery revealed the names of all BPD officers who
participated in the incident involving Mr. Fernandes, and
this motion now seeks to effect that goal.

Shortly
before the parties completed fact discovery, the plaintiff
filed a motion to amend seeking to add two new claims. First,
the plaintiff seeks to add a section 1983 claim against
Sergeant David Gavin, who is currently the sole defendant in
this matter. The original complaint alleges three claims
against Sgt. Gavin based upon the use of allegedly excessive
force during the stop of the vehicle in which Fernandes was a
passenger. The new 1983 claim alleges that the same motor
vehicle stop was not supported by reasonable suspicion or
probable cause. Second, the plaintiff seeks to add a section
1983 claim for conducting a motor vehicle stop without
reasonable suspicion or probable cause against Sergeant
Detective Earl Perkins, a new defendant. (Dkt. No. 92).

Sgt.
Gavin has opposed the plaintiff's motion to amend on the
ground that he has been prejudiced by the plaintiff's
undue delay in seeking leave to amend. (Dkt. No. 96).

II.
Analysis

Federal
Rule of Civil Procedure 15 provides that leave of court is
required where a plaintiff seeks to amend a complaint more
than 21 days after “service of a responsive pleading or
. . . motion under Rule 12(b), (e), or (f).”
Fed.R.Civ.P. 15(a). Generally, the Court “should freely
give leave [to amend] when justice so requires.”
Id. To determine whether leave to amend should be
granted, the Court “examine[s] the totality of the
circumstances and [exercises] its informed discretion in
constructing a balance of pertinent considerations.”
Palmer v. Champion Mortg., 465 F.3d 24, 30-31 (1st
Cir. 2006).

Undue
delay on the part of the movant and undue prejudice to the
opposing party if amendment is allowed - the arguments that
the defendant advances -- can both be grounds for denying
leave to amend. Foman v. Davis, 371 U.S. 178, 182
(1962). The defendant's arguments notwithstanding, the
Court does not believe that the plaintiff's motion to
amend gives rise to either of those concerns. The plaintiff
has made no secret of the fact that she intended to amend the
complaint to add new parties at the close of fact discovery.
The motion to amend therefore should not have taken the
defendant by surprise. Further, the new claims are part and
parcel of the entire incident that is at issue in this case
and the defendant therefore should have been on notice
regarding them, and should not be prejudiced in his defense
against them. Indeed, when pressed at oral argument, the
defendant could not articulate any specific prejudice that he
faced as a result of the timing of the plaintiff's motion
to amend. There thus is no basis to deny leave to amend.

III.
Conclusion

Based
upon the foregoing and for the reasons discussed at oral
argument, it is recommended that ...

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